DETERMINING THE ADMISSIBILITY OF A PIECE OF EVIDENCE
*N.B. a question of law considered by the tribunal of law (i.e. the judge)
(c.f. weight of evidence, which is a question of fact considered by the tribunal of fact (i.e. the jury))
1. Is the evidence excluded by any exclusionary rule (i.e. hearsay, opinion)? If it is, does it fall under
any of the exceptions to the rule?
If evidence does not fall under one of the
exclusionary rules; or
It is saved by one of the exceptions to the
exclusionary rule, then move on to the next step.
If evidence falls under one of the
exclusionary rules and is not excluded
by any exception, then evidence is
inadmissible.
2. Is the evidence relevant?
If relevant, move on to the next step.
If irrelevant, then evidence is inadmissible.
3. [N.B. the judge has a residual discretionary power to exclude evidence to ensure a fair trial]
Whether the prejudicial effect (i.e. unfairness caused to the party) outweighs the probative value of
the evidence?
If prejudicial effect < probative value,
then evidence is admissible.
If prejudicial effect > probative value,
then the judge might exercise its residual
discretionary power to exclude, so the
evidence becomes inadmissible.